Litigation-I Win, You Lose vs. Mediation-Win/Win

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  Litigation is a zero-sum game.  It destroys relationships and fosters enmity between the parties.  Parties rarely walk away happy.  Even if they win, the expense of litigation is enormous, and collecting on judgments is difficult. Disputes ultimately resolve, but the focus on winning at any cost can lead to prolonged legal battles.  Living with a lawsuit causes ongoing stress, which can distract you from your business and even have an effect on your health. In a courtroom, the final decision lies with a judge or jury who may not fully grasp the complexities of the case. Parties relinquish control over the outcome, potentially leaving them dissatisfied with the final judgment. Mediation has the opposite effect.   Rather than polarizing people, it enables the parties to attack the issues and not each other.     The process promotes open communication, collaboration and problem-solving, which enables parties to actively participate in crafting ...

Why You Should Arbitrate Your Construction Dispute

Many of my colleagues are dissatisfied with arbitration due to its virtually unappealable nature in Massachusetts. The bases for appeal are extremely limited and include only bias on the part of the arbitrator, fraud, and other difficult-to-prove allegations. Moreover, there is no concept of "manifest disregard of the law," which means that the arbitrator can fail to apply the law correctly. Despite this, the reality is that most cases settle, and of those that go to trial, only a small percentage are appealed. For example, in Massachusetts last year, out of 52,299 civil matters filed, there were only 435 appeals, representing less than 1% of the total civil matters filed.

Construction law is a specialized area, and it is crucial for a judge or arbitrator to have experience in the subject matter of a dispute. The course of conduct in construction projects is often relevant, making experience in the field important. Therefore, the lack of a right of appeal should not discourage parties from pursuing arbitration. The parties can choose their arbitrator, resolve disputes more efficiently and, hopefully, fairly. They can also avoid negative publicity and maintain confidentiality.

I include arbitration clauses in all of my contracts and allow for mediation as an option only if both parties agree to pursue it.  That way, parties do not waste time and expense on mediation if they cannot enter the process in good faith. 

Parties should include arbitration clauses in their construction contracts because it allows them to have more control over the dispute resolution process.  When disputes arise, they should carefully consider the qualifications of potential arbitrators making their choice.  Choosing an arbitrator with specialized knowledge in the construction industry can help ensure that the dispute resolution process is efficient, effective, and fair.

If you need assistance with your construction dispute, please visit my website at www.goldmanlg.com to learn more about my experience. To schedule an arbitration or mediation, please contact me directly at 617-953-3760 or agoldman@goldmanlg.com.



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